Brady v. NFL: a primer

Before we return to the “he said/she said” phase of the NFL labor dispute, I thought I would focus on what is actually in front of us as the reality of the NFL right now. Thus, here is a primer on the case of Brady v. NFL, a case whose eventual settlement will be the basis for the next Collective Bargaining Agreement (CBA) in the NFL.

Why are the Players (Brady, etc.) able to sue?

Since the NFL Players Association (NFLPA) has decertified and relinquished their role as the collective bargaining representative of NFL Players, NFL players are now a non-unionized workforce. As such, they can now argue that certain conduct of the NFL that is blessed in labor law — through the presence of a union and collectively bargained agreements — is now illegal under antitrust law. Players claim that the 32 individual franchises conspire by implementing these rules. Since the bargaining relationship with the NFLPA has ended, the NFL is no longer immune to antitrust scrutiny, and players are now able to bring lawsuits against the NFL.

ICONMiller is the named rookie plaintiff.

Who are the plaintiffs?

Besides Tom Brady, Peyton Manning, and Drew Brees, the named plaintiffs are: Vincent Jackson, Ben Leber, Logan Mankins, Brian Robison, Osi Umenyiora, Mike Vrabel, and Von Miller. Beyond that, this is a class action lawsuit, meaning the aforementioned players are representing essentially all NFL players as well as those eligible to become NFL players. The named plaintiffs also represent different categories of players such as recently signed (Brady), restricted by the events of the past year (Jackson, Mankins), having one year remaining on their contract (Brees), playing under a franchise tag (Manning), a free agent (Leber) and an incoming rookie (Miller).

What do the Players want?

The Players are requesting:

An injunction to stop the NFL lockout and force teams to open their facilities to players and transact business;

Treble (triple) damages for all players due to these restraints, as well as costs and attorneys fees.

A declaration that the NFL has waived its right to assert any “sham” defense – meaning that the NFL cannot contest the NFLPA’s decertification as illegitimate.

What do the Players really want?

A better CBA than they were offered in bargaining. Players think they can procure better terms through litigation than the NFL offered at the bargaining table, as was the case in 1993 in the Reggie White v. NFL class-action lawsuit.

Do the Players have a good claim? What is their likelihood of success?

If this case ever gets to court – which I think it will not — the Players will have good arguments but may have trouble countering the NFL’s “competitive balance” justification. All the restraints – salary cap, player draft, franchise tags – serve to even the field, leading to a higher-quality product, increasing fan interest, and driving up the NFL’s profitability (of which the Players share a portion). Also, in American Needle v. NFL the U.S. Supreme Court hinted that competitive balance provides a proper justification in antitrust litigation.

Will Judge Nelson have responsibility over this case?

Yes. However, Judge Nelson is far from the end of the line. Regardless of the outcome, either party may appeal to the U.S. Court of Appeals for the Eighth Circuit, where a randomly selected panel of three judges would then hear the case. The determination of the Eighth Circuit is then appealable to the U.S. Supreme Court.?

What is the NLRB and how are they involved?

The National Labor Relations Board (NLRB) has both an investigatory department and an adjudicatory department made up of 40 Administrative Law Judges (ALJs) that hear and decide cases. On February 14th the NFL filed an unfair labor practice claim with the NLRB alleging that the NFLPA had engaged in “surface bargaining” and failed to deal in good faith.

The NFL is arguing that the NFLPA's decertification is not legitimate and that they had long planned to dissolve and file an antitrust suit, pointing to the NFLPA’s autumn decertification tour to all 32 teams as evidence. The Players argue that the NFL’s claim of a “sham” decertification is waived by language in the Settlement and Stipulation Agreement (SSA) from the prior CBA.

This is where it gets complicated. Both the CBA and SSA provisions state that the waiver of the “sham” defense is only “after the expiration” of the CBA. Since the NFL filed the claim three weeks prior to the expiration of the CBA, it seems as though the waiver may not apply. Nevertheless, reasonable minds may differ, and this language is subject to disputed interpretations by the NFL and the Players.

If the NLRB agrees with the NFL’s position, an NLRB ALJ will hear the matter. The losing party may appeal this decision to the NLRB’s Board – five members appointed by the President. The NLRB Board’s order is appealable to a U.S. Circuit Court of Appeals, whose judgment may be appealed to the U.S. Supreme Court.

What is the key to the April 6th Preliminary Injunction hearing?

The Players will have to show “immediate and irreparable harm” from the lockout, arguing that every opportunity to be at the team’s facility is necessary to their short careers in football.

If the Player’s successfully prove the harm, the lockout will be lifted while the antitrust litigation proceeds. The NFL would then most likely impose 2010 rules for its business (no salary cap, six years to unrestricted free agency, 30% rule, franchise and transition tags, etc).

And is the television “lockout insurance” case still ongoing?

Yes. Judge David Doty will determine the appropriate remedies to be issued to the NFLPA. With their ongoing themes of transparency, the NFLPA has asked to publicly release all of the documents involved in this case. In response, the NFL argues that these documents are confidential and should be kept sealed, although they have provided redacted (edited) versions.

Is there a timeline for this mess to get sorted out?

Litigation can be and often is a painfully prolonged process. This lawsuit’s precursor, White v. NFL, took years before a settlement was reached. A ruling on the Players’ motion for preliminary injunction will come soon after April 6. If the preliminary injunction is granted, it is likely that NFL operations will resume just in time for the NFL Draft.

Meanwhile, both sides will continue the rhetoric and spin that have characterized this relationship, save for a few days of mediator-imposed silence a couple of weeks ago.

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